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After a long period of inactivity, the Banda case at the International Criminal Court (ICC) has suddenly come back to life, but for very controversial reasons that have received little attention and commentary.

One of the early cases at the ICC, charges against Banda and his co-accused, Jerbo, were confirmed in March 2011. The allegations relate to a deadly 2007 attack on peacekeepers in Darfur. Both suspects waived their right to be present at the confirmation hearing, and notably the facts underlying the charges were not contested by the Defence at that time. Much of 2012 and 2013 were taken up with delays over translation of evidence (that had to be audio-translated into Zaghawa, which is not a written language), attempts to stay the proceedings and the disclosure of evidence. Proceedings against Jerbo were later terminated following credible reports of his death, and trial was later scheduled to commence for Banda alone in May 2014, but this date was later vacated. Frustrated by Banda’s inability to voluntarily appear and Sudan’s lack of cooperation, the Trial Chamber decided to transform his summons into a warrant of arrest in September 2014.

Photo: ICC

Since that time, Banda has remained at large and the case effectively dormant. Then, a few months ago, litigation in the case started to accelerate once again. In October, a re-configured Trial Chamber of Judges Prost, Fremr and Alapini-Gansou convened a status conference to discuss the status of the case, which was held entirely in closed session. However, in a subsequent Order, it was revealed that during the status conference, Judges Fremr and Alapini-Gansou “raised the issue of trials in absentia, with Judge Fremr raising the question as to whether such a proceeding was possible in this instance, in view of the developments in jurisprudence and amendments to the Rules of Procedure and Evidence.” The Chamber invited the parties to file observations on trials in absentia in the specific circumstances of this case. Judge Prost dissented, noting that “the Rome Statute and settled jurisprudence make it clear that a trial in absentia is not possible before the Court in these circumstances.”

This was an extremely surprising move. Trials in absentia were expressly considered, and rejected, during the drafting negotiations of the Rome Statute. As noted by the Prosecution in their submissions, article 63(1) clearly provides “[t]he accused shall be present during the trial.” The amendments to the Rules – made by the ASP in the aftermath of contentious litigation in the Ruto case – allow only for temporary excusal from presence where the accused is subject to a summons (rule 134 bis & ter) or where they have extraordinary public duties (rule 134 quater), none of which are applicable to Banda.

It seems, therefore, there is no wiggle room for even a liberal interpretation of these rules in order to sanction an in absentia trial for Banda. Notably, the Ruto Trial Chamber considered that it had the inherent authority to proceed with a trial of an “absconding accused” who had previously voluntarily submitted to its jurisdiction (paras. 44-46), as to do otherwise would hold the Trial Chamber “hostage to impunity.” While a laudable proposition, this interpretation finds no literal support in the Statute or the Rules. The Appeals Chamber also reversed this decision, holding that a blanket excusal of presence was not permitted.

The Prosecution and Defence observations on in absentia trials were filed in December 2019. It is curious that over five months have passed since, and there has been no further action from the Trial Chamber. As of writing, the Defence position is not publicly known. Surprisingly, the Legal Representatives of Victims were seemingly unaware of these in absentia developments (despite the public order in November 2019), and only recently requested leave to make observations, a request which was granted by the Trial Chamber. Judge Prost again noted her dissent. This could indicate that a further judicial decision will be forthcoming.

A majority of the Trial Chamber clearly has an appetite for in absentia proceedings in the Banda case. It remains to be seen if they will decide to press ahead, and on what legal basis. Any such proceedings would likely be short-lived, however, as corrective intervention from the Appeals Chamber would surely follow.

In the lead-up to the annual meeting of the States Parties to the International Criminal Court in December 2017, it is imperative for states, NGOs and other interested parties to pay close attention to efforts to reinforce the Court’s preventive function by addressing incitement and hate speech. The criminalization of speech acts has become a major issue in recent times. With the rise of populism in the United States and the United Kingdom, questions have arisen as to the boundaries between lawful and unlawful speech. Some domestic authorities have undertaken to severely repress speech acts; which will inevitably result in litigation over the parameters of the right to freedom of expression.

The international courts are no strangers to these issues, having dealt with several cases concerning allegations of speech acts contributing to atrocity crimes. Given its potential global jurisdiction, the international criminal court can play a leading role in regulating hateful and inciting speech. Focussing on verbal acts before they escalate to physical violence will directly enhance the Court’s preventive function. Accordingly, the following proposal seeks to address the most serious forms of unlawful speech.

The Peace and Justice Initiative and the University of Connecticut Human Rights Institute have formulated an amendment of article 25(3)(e) of the Rome Statute, to read as follows:

Intentionally, directly, and publicly incites others to commit any of the crimes in the Statute, thereby substantially increasing the likelihood of their occurrence. For the purpose of this provision it is not necessary that the incited crime(s) be committed or attempted.

At present, article 25(3)(e) of the Rome Statute refers only to direct and public incitement of genocide. The proposed amendment would see a form of liability entered into the Rome Statute covering not only those persons who urge others to commit genocide, but also those who call for crimes against humanity, war crimes and (potentially) the crime of aggression.It would remove the current anomaly whereby direct and public calls for crimes such as extermination, rape, or torture, for example, are not criminalized per se.

The proposed amendment would redress the current ambiguity in the formulation of direct and public incitement to genocide in the Rome Statute, which has created confusion as to whether it is an inchoate crime (as considered at the ad hoc Tribunals), or a mode of liability requiring genocide to actually occur, as indicated by its placement in article 25 and lack of wording to the contrary.

Importantly, the proposed amendment confirms the inchoate nature of this form of liability. This would strengthen the Court’s preventive function, as the direct and public incitement could be prosecuted without having to wait for the execution of the atrocity crime to commence. That contrasts with the Court’s more restricted jurisdiction over soliciting and inducing crimes under article 25(3)(b), for example, which require that the crime either occurs or is attempted (the latter meaning that the perpetrator commenced the execution of the crime, but was thwarted because of circumstances independent of the perpetrator’s intentions). Where direct and public calls are being made for atrocity crimes to occur, the international community should not have to wait, like an ambulance at the bottom of the cliff, for the violence to manifest before measures can be taken against those urging the crimes.

The proposed amendment makes it necessary to show that the incitement substantially increased the likelihood of genocide occurring. This filter is designed to exclude less serious speech acts, such as fanciful calls for crimes, or statements by persons with no real possibility of prompting anyone to commit grave crimes. As a formulation, “substantial likelihood” is well-known to international lawyers, thus benefitting from the guidance of settled case-law. For the avoidance of doubt, the proposed amendment explicitly states that the incitement must be done intentionally.

Several legal sources provide support for the direct and public incitement of atrocity crimes, including the ICCPR, article 20(1) (“Any propaganda for war shall be prohibited by law”) and (2) (“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”); the CERD, article 4 (“States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”); and the Genocide Convention, articles 3(c) (“The following acts shall be punishable (c) direct and public incitement to commit genocide”) and 5 (“The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”).

At a time when grave violence is prevalent, and the fires of discriminatory hatred are easily stoked, it is important to enhance the preventive function of international criminal law. Enacting the proposal set out above would be a measured but firm step towards realizing this potential.

Editor’s Note: Beyond The Hague is delighted to publish this review (in French) of the International Center for Transitional Justice (ICTJ) Handbook on Complementarity by Traoré Drissa, a human rights lawyer in the Cote d’Ivoire who assesses the complementarity issues at play in his home country, and how the handbook can assist national structures. An English version is available here.

On May 26th, the Single Judge of the Trial Chamber IX denied legal aid to 2/3 of victims participating in the Ongwen case – the ICC’s only case so far in relation to the Lord’s Resistance Army rebellion that for years terrorized communities in northern Uganda. The Single Judge’s decision does not come as a complete surprise: it affirms the interpretation of rules on financial assistance for victims proposed by the Pre-Trial Chamber in November 2015, which I wrote about previously. In a broader perspective, it is not only a decision on legal aid, it is a step towards focusing victims’ representation with the ICC’s Office of Public Counsel for Victims (OPCV) and limiting victims’ procedural rights, specifically victims’ right to choose their legal representative.

Currently, a total of 2064 victims are admitted to participate in the trial, scheduled to begin in December. Why were 1434 of these victims denied legal aid? Have they failed to prove their indigence? Have their lawyers failed to meet the standards of quality and cost efficient representation? No. The reasons underlying the Single Judge’s decision have nothing to do with the victims’ indigence or performance of their counsel. The 1434 victims were denied legal aid because they agreed to choose the same representative without engaging the Court’s assistance. Unlike the remaining 592 victims, who made no decision on their legal representation and for whom the Chamber appointed the ICC’s OPCV to act as a Common Legal Representative (CLR), these 1434 victims have fully exercised their freedom to choose a legal representative in accordance with the rules. Importantly, their choice has been approved by the Court as being without prejudice to the effectiveness of proceedings. This decision strikes a blow to meaningful victim participation, it is based on a mid-reading of the rules and is inconsistent with previous practice of the Court. Continue reading →

The confirmation of charges hearing in the case of Dominic Ongwen has begun. Many victims of the conflict in northern Uganda have been waiting for this moment for the past ten years. More than 2000 victims had been admitted to voice their views and concerns in the case brought by the Prosecutor against one of the top LRA commanders. How will they do that? Through their legal representatives standing in a court room in The Hague, 10,000 km north of where most of the participating victims reside.

Inclusion of victims in the ICC proceedings has been and continues to be one of the most hailed features of the Rome Statute system. There are many doubts, however, as to how it is being implemented. In light of the ongoing (never ending?) debate on “meaningful participation” of victims in ICC proceedings, it is worth looking at the recent developments in the Ongwen case regarding victims’ representation. The effectiveness of victims’ participation in the ICC proceedings depends largely on the performance of their counsel.

In March 2015, the Appeals Chamber of the International Criminal Court issued its first-ever judgment on reparations, in the Thomas Lubanga Dyilo case, confirming the Court’s historic commitment to moving beyond retributive justice for victims of the gravest crimes. At the same time, it urged the Court’s Trust Fund for Victims (TFV) to issue assistancemeasures to victims who fall outside the scope of victimization determined at trial [Reparations Judgment,para. 215]. The use of assistance to complement, fill in, or expand reparations programs is both novel and increasing in international law and transitional justice, yet there is little research focused specifically on their combination.

A Peace March supported by the Colombian Victims’ Unit, which implements reparations and assistance for victims of the armed conflict. Source: Victims’ Unit

In my paper in the forthcoming special issue on victims in the International Journal of Transitional Justice, edited by Juan Mendez, I present two contemporary examples where reparations and assistance are being combined for victims of grave crimes: the ICC’s forthcoming reparations awards in the Democratic Republic of the Congo [see here and here] and Colombia’s recent reparations program – Law 1448 – for victims of its armed conflict.

The relationship between ‘reparations’ and ‘assistance’ exposes fundamental tensions at the heart of transitional justice: between inclusive and exclusive approaches to reparative justice; between the legal strictures of redress and the complex realities of violence; and, ultimately, between the supposed symbolic power of reparative justice and victims’ experience of reparations in practice. While scholars and practitioners often assume that reparations and assistance are clearly distinct, their combination suggests otherwise. Both the ICC and Colombian cases highlight that the line between reparations and assistance can become blurry in practice. They can look similar in form, have similar impacts, be distributed through similar processes and, I argue, impart similar notions of responsibility and recognition to victims of grave crimes and gross violations of human rights.

This article is cross-posted from the National Post. A “preliminary investigation” by the ICC Prosecutor into possible crimes against humanity and war crimes in Nigeria has been ongoing since 2010. The investigation is currently in the Phase III “Admissibility” stage, where the prosecutor is determining whether the Nigerian government’s proceedings “are substantially the same as those that would likely arise from an investigation” by her office and whether “those most responsible for the most serious crimes are being brought to justice.”

Boko Haram’s pledge of allegiance to the Islamic State on March 7 did not initially result in noticeable changes on the ground. Boko Haram’s recent targeting of moderate Muslim clerics, evangelical churches and perceived “non-believers” during Islam’s holy month of Ramadan, however, has made that pledge a reality.

Abubakr Shekau, leader of Boko Haram (photo: AFP)

Since the May 29 inauguration of President Muhammadu Buhari, a former military ruler who hails from Nigeria’s Muslim north, Nigeria, Chad and Cameroon have witnessed a significant resurgence of Boko Haram attacks. This comes after a series of territorial defeats in which Nigerian and Chadian-led regional counterinsurgency forces recaptured large swaths of territory in northeastern Nigeria from Boko Haram control.

Many of the attacks in recent weeks have been classic Boko Haram, marking a return to its militant roots with suicide bombings in urban markets and government buildings, as well as raids on villages across northeastern Nigeria. However, there have been two notable new developments that warrant special attention.